Recent cases in labour law — February 2024

Welcome to recent cases in labour law — February 2024:

• The Federal Court of Australia (Bromwich J) has held that the making of two sets of false or misleading representations to 22 employees did not enliven the common law course of conduct principle, such that the applicable maximum penalty for those 22 contraventions was $2,772,000 (being the product of 44 and $63,000), rather than $126,000 (being the product of two and $63,000), observing that the application of the principle of totality would nevertheless confine the quantum of civil penalties to be imposed (at [43]-[51]). (Fair Work Ombudsman v Commonwealth Bank of Australia [2024] FCA 81)
• The Full Court of the Federal Court of Australia (Perram, Nicholas, Burley, Rofe and Downes JJ) has usefully summarised the legal principles relevant to the proper construction and equitable enforcement of a release from claims clause contained in a deed of release, having regard to the principles stated in Grant v John Grant & Sons Proprietary Limited [1954] HCA 23; (1954) 91 CLR 112 (at [38]). (Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2024] FCAFC 15)
• The Full Court of the Federal Court of Australia (Rangiah, Wheelahan, and Goodman JJ) has held that a payment made in compromise of a complaint of discrimination or sexual harassment lodged under the Australian Human Rights Commission Act 1986 (Cth) falls outside of the reach of section 48 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (at [87]). (Comcare v Friend [2024] FCAFC 4)
• The Federal Court of Australia (Raper J) has held that, in respect of a claim based on a breach of section 62 of the Fair Work Act 2009 (Cth), “an employee may establish that he or she was required to work a certain number of hours if he or she gives evidence of the work he or she was directed by her employer to complete a task and the impossibility of completing it other than beyond ordinary working hours”, but that an employer will not have required an employee to work additional hours if the employee “chooses to work additional hours without the approval and/or knowledge of the employer for professional development or personal gain then he or she cannot complain of an alleged requirement to work additional hours” (at [336]); and that an employee pleading such a claim must plead with precision the persons who “required” the employee to work additional hours, “when” the additional hours were worked and “what” those additional hours were, and nature and content of any work requirements that demanded additional hours be worked (at [337]-[338]). Further, in an unrelated claim, the Court held that $10,000 in general damages were to be awarded to an employee who suffered “distress” from a three-month delay in being paid out his accrued but unused annual leave (at [5] and [453]). Further, in another unrelated claim, the Court also usefully summarised the legal principles regarding the common law contractual right to summarily dismiss an employee for serious misconduct (at [402]-[413]). (Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162)
• The Supreme Court of New South Wales (Robb J) has usefully summarised the legal principles relevant to determining the reasonable duration of a restrictive covenant against solicitation (at [58]-[63]), observing that “it should be possible for the principal, who seeks to enforce the restraint of trade, to tender objective evidence concerning the nature of the principal’s business and the means that are available to the principal to secure its client connection following the departure of a contractor, to assist the Court to make a rational and fair judgment concerning the duration of the restraint that is reasonably justifiable” (at [62]). (Carsal and Associates Pty Ltd t/a Triggerpoint Natural Health Centre v Crozier [2024] NSWSC 26)
• The Supreme Court of New South Wales (Nixon J) has usefully summarised the legal principles regarding section 69(3) of the Evidence Act 1995 (NSW), being an exception to the “business records” exception to the hearsay rule, in the context of the attempted tender of representations contained in a workplace investigation report (at [348]-[369]). Further, the Court also usefully summarised the legal principles governing the extent of the fiduciary relationship between an employer and employee (at [450]-[464]) and the legal principles governing the definition of an “officer” under the Corporations Act 2001 (Cth) (at [493]-[500]). (Global Risk Alliance Group Services Pty Ltd v Harmer [2024] NSWSC 79)
• The Federal Court of Australia (Jackman J) has held that a party seeking to adduce hearsay evidence in an interlocutory hearing must identify the source of the hearsay evidence by name, and cannot identify the source by reference to an alias, in order to enliven the exception to the hearsay rule created by section 75 of the Evidence Act 1995 (Cth) (at [2]-[3]). (Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd [2024] FCA 126)
• The Federal Circuit and Family Court of Australia (Division 2) (Deputy Chief Judge Mercuri) has helpfully summarised the legal principles relevant to setting aside a notice to produce a “specified document” pursuant to rule 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (at [14]-[25]). (Burke v Plush Think Sofas Pty Ltd [2024] FedCFamC2G 94)
• The Supreme Court of New South Wales (Rees J) has helpfully summarised the legal principles regarding counsel’s duty of candour in ex parte applications and hearings (at [12]-[15]). (Madsen v Darmali [2024] NSWSC 76)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge D Humphreys) has usefully summarised the factors relevant to the Court’s power to specify the maximum costs that may be recovered by a party on a party and party basis (at [6])-[13]). (O’Brien v Goodman Fielder Consumer Foods Pty Ltd [2024] FedCFamC2G 117)
• The Federal Court of Australia (Perram J) has observed that “in determining the extent of the res judicata that arises in a particular case, a court is to look only at the nature of the claim and the final orders” (at [6]), and further observed that, at present, it is uncertain if “res judicata or cause of action estoppel can even apply where declaratory relief is being sought” (at [6]). (Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation (Form of Orders) [2024] FCA 54)
• The Supreme Court of New South Wales (Slattery J) has helpfully summarised the legal principles regarding the Court’s jurisdiction to make orders against persons whose names are unknown (at [33]-[37]). (HWL Ebsworth Lawyers v Persons Unknown [2024] NSWSC 71)
• The New South Wales District Court (Waugh SC DCJ) has usefully summarised the legal principles relevant to the purpose and operation of section 26 of the Personal Injury Commission Act 2020 (NSW), being the legislative response to federal jurisdiction issues that followed from the decision of the High Court in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 )(at [26]). (Chetty v Queanbeyan-Palerang Regional Council [2024] NSWDC 12)
• The New South Wales Court of Appeal (Mitchelmore JA; Adamson JA; Griffiths AJA) has observed that a judicial officer, who decides a matter on a basis not raised nor argued by the parties to the matter, could deny procedural fairness to the losing party, noting that “the correct course is for the judicial officer’s associate to contact the parties and invite them to make submissions, whether orally or in writing, on that additional matter” (at [83]-[85]). (Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24)